98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
HB1458

 

Introduced , by Rep. Elizabeth Hernandez

 

SYNOPSIS AS INTRODUCED:
 
405 ILCS 5/3-812  from Ch. 91 1/2, par. 3-812
740 ILCS 110/10  from Ch. 91 1/2, par. 810

    Amends the Mental Health and Developmental Disabilities Code. Provides that if necessary in order to obtain the hospitalization of the respondent, a custodian may apply to the court for an order authorizing an officer of the peace to take the respondent into custody and transport the respondent to a mental health facility (instead of to the hospital specified in the agreed order). Amends the Mental Health and Developmental Disabilities Confidentiality Act. Provides that a party to certain proceedings may also serve a subpoena seeking to obtain access to records or communications under the Act if it is accompanied by the written consent of the person whose records are being sought (instead of only when accompanied by a written order issued by a judge). Provides that each subpoena (instead of subpoena duces tecum) shall contain language informing the person being served of the requirement for the subpoena to be accompanied by a written order or consent.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB1458LRB098 08600 HEP 38718 b

1    AN ACT concerning health.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Mental Health and Developmental
5Disabilities Code is amended by changing Section 3-812 as
6follows:
 
7    (405 ILCS 5/3-812)  (from Ch. 91 1/2, par. 3-812)
8    Sec. 3-812. Court ordered admission on an outpatient basis;
9modification; revocation.
10    (a) If a respondent is found subject to involuntary
11admission on an outpatient basis, the court may issue an order:
12(i) placing the respondent in the care and custody of a
13relative or other person willing and able to properly care for
14him or her; or (ii) committing the respondent to alternative
15treatment at a community mental health provider.
16    (b) An order placing the respondent in the care and custody
17of a relative or other person shall specify the powers and
18duties of the custodian. An order of care and custody entered
19pursuant to this Section may grant the custodian the authority
20to admit a respondent to a hospital if the respondent fails to
21comply with the conditions of the order. If necessary in order
22to obtain the hospitalization of the respondent, the custodian
23may apply to the court for an order authorizing an officer of

 

 

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1the peace to take the respondent into custody and transport the
2respondent to a mental health facility the hospital specified
3in the agreed order. The provisions of Section 3-605 shall
4govern the transportation of the respondent to a mental health
5facility, except to the extent that those provisions are
6inconsistent with this Section. No person admitted to a
7hospital pursuant to this subsection shall be detained for
8longer than 24 hours, excluding Saturdays, Sundays, and
9holidays, unless, within that period, a petition for
10involuntary admission on an inpatient basis and a certificate
11supporting such petition have been filed as provided in Section
123-611.
13    (c) Alternative treatment shall not be ordered unless the
14program being considered is capable of providing adequate and
15humane treatment in the least restrictive setting which is
16appropriate to the respondent's condition. The court shall have
17continuing authority to modify an order for alternative
18treatment if the recipient fails to comply with the order or is
19otherwise found unsuitable for alternative treatment. Prior to
20modifying such an order, the court shall receive a report from
21the facility director of the program specifying why the
22alternative treatment is unsuitable. The recipient shall be
23notified and given an opportunity to respond when modification
24of the order for alternative treatment is considered. If the
25court determines that the respondent has violated the order for
26alternative treatment in the community or that alternative

 

 

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1treatment in the community will no longer provide adequate
2assurances for the safety of the respondent or others, the
3court may revoke the order for alternative treatment in the
4community and may order a peace officer to take the recipient
5into custody and transport him to an inpatient mental health
6facility. The provisions of Section 3-605 shall govern the
7transportation of the respondent to a mental health facility,
8except to the extent that those provisions are inconsistent
9with this Section. No person admitted to a hospital pursuant to
10this subsection shall be detained for longer than 24 hours,
11excluding Saturdays, Sundays, and holidays, unless, within
12that period, a petition for involuntary admission on an
13inpatient basis and a certificate supporting such petition have
14been filed as provided in Section 3-611.
15(Source: P.A. 96-1399, eff. 7-29-10; 96-1453, eff. 8-20-10.)
 
16    Section 10. The Mental Health and Developmental
17Disabilities Confidentiality Act is amended by changing
18Section 10 as follows:
 
19    (740 ILCS 110/10)  (from Ch. 91 1/2, par. 810)
20    Sec. 10. (a) Except as provided herein, in any civil,
21criminal, administrative, or legislative proceeding, or in any
22proceeding preliminary thereto, a recipient, and a therapist on
23behalf and in the interest of a recipient, has the privilege to
24refuse to disclose and to prevent the disclosure of the

 

 

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1recipient's record or communications.
2        (1) Records and communications may be disclosed in a
3    civil, criminal or administrative proceeding in which the
4    recipient introduces his mental condition or any aspect of
5    his services received for such condition as an element of
6    his claim or defense, if and only to the extent the court
7    in which the proceedings have been brought, or, in the case
8    of an administrative proceeding, the court to which an
9    appeal or other action for review of an administrative
10    determination may be taken, finds, after in camera
11    examination of testimony or other evidence, that it is
12    relevant, probative, not unduly prejudicial or
13    inflammatory, and otherwise clearly admissible; that other
14    satisfactory evidence is demonstrably unsatisfactory as
15    evidence of the facts sought to be established by such
16    evidence; and that disclosure is more important to the
17    interests of substantial justice than protection from
18    injury to the therapist-recipient relationship or to the
19    recipient or other whom disclosure is likely to harm.
20    Except in a criminal proceeding in which the recipient, who
21    is accused in that proceeding, raises the defense of
22    insanity, no record or communication between a therapist
23    and a recipient shall be deemed relevant for purposes of
24    this subsection, except the fact of treatment, the cost of
25    services and the ultimate diagnosis unless the party
26    seeking disclosure of the communication clearly

 

 

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1    establishes in the trial court a compelling need for its
2    production. However, for purposes of this Act, in any
3    action brought or defended under the Illinois Marriage and
4    Dissolution of Marriage Act, or in any action in which pain
5    and suffering is an element of the claim, mental condition
6    shall not be deemed to be introduced merely by making such
7    claim and shall be deemed to be introduced only if the
8    recipient or a witness on his behalf first testifies
9    concerning the record or communication.
10        (2) Records or communications may be disclosed in a
11    civil proceeding after the recipient's death when the
12    recipient's physical or mental condition has been
13    introduced as an element of a claim or defense by any party
14    claiming or defending through or as a beneficiary of the
15    recipient, provided the court finds, after in camera
16    examination of the evidence, that it is relevant,
17    probative, and otherwise clearly admissible; that other
18    satisfactory evidence is not available regarding the facts
19    sought to be established by such evidence; and that
20    disclosure is more important to the interests of
21    substantial justice than protection from any injury which
22    disclosure is likely to cause.
23        (3) In the event of a claim made or an action filed by
24    a recipient, or, following the recipient's death, by any
25    party claiming as a beneficiary of the recipient for injury
26    caused in the course of providing services to such

 

 

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1    recipient, the therapist and other persons whose actions
2    are alleged to have been the cause of injury may disclose
3    pertinent records and communications to an attorney or
4    attorneys engaged to render advice about and to provide
5    representation in connection with such matter and to
6    persons working under the supervision of such attorney or
7    attorneys, and may testify as to such records or
8    communication in any administrative, judicial or discovery
9    proceeding for the purpose of preparing and presenting a
10    defense against such claim or action.
11        (4) Records and communications made to or by a
12    therapist in the course of examination ordered by a court
13    for good cause shown may, if otherwise relevant and
14    admissible, be disclosed in a civil, criminal, or
15    administrative proceeding in which the recipient is a party
16    or in appropriate pretrial proceedings, provided such
17    court has found that the recipient has been as adequately
18    and as effectively as possible informed before submitting
19    to such examination that such records and communications
20    would not be considered confidential or privileged. Such
21    records and communications shall be admissible only as to
22    issues involving the recipient's physical or mental
23    condition and only to the extent that these are germane to
24    such proceedings.
25        (5) Records and communications may be disclosed in a
26    proceeding under the Probate Act of 1975, to determine a

 

 

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1    recipient's competency or need for guardianship, provided
2    that the disclosure is made only with respect to that
3    issue.
4        (6) Records and communications may be disclosed to a
5    court-appointed therapist, psychologist, or psychiatrist
6    for use in determining a person's fitness to stand trial if
7    the records were made within the 180-day period immediately
8    preceding the date of the therapist's, psychologist's or
9    psychiatrist's court appointment. These records and
10    communications shall be admissible only as to the issue of
11    the person's fitness to stand trial. Records and
12    communications may be disclosed when such are made during
13    treatment which the recipient is ordered to undergo to
14    render him fit to stand trial on a criminal charge,
15    provided that the disclosure is made only with respect to
16    the issue of fitness to stand trial.
17        (7) Records and communications of the recipient may be
18    disclosed in any civil or administrative proceeding
19    involving the validity of or benefits under a life,
20    accident, health or disability insurance policy or
21    certificate, or Health Care Service Plan Contract,
22    insuring the recipient, but only if and to the extent that
23    the recipient's mental condition, or treatment or services
24    in connection therewith, is a material element of any claim
25    or defense of any party, provided that information sought
26    or disclosed shall not be redisclosed except in connection

 

 

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1    with the proceeding in which disclosure is made.
2        (8) Records or communications may be disclosed when
3    such are relevant to a matter in issue in any action
4    brought under this Act and proceedings preliminary
5    thereto, provided that any information so disclosed shall
6    not be utilized for any other purpose nor be redisclosed
7    except in connection with such action or preliminary
8    proceedings.
9        (9) Records and communications of the recipient may be
10    disclosed in investigations of and trials for homicide when
11    the disclosure relates directly to the fact or immediate
12    circumstances of the homicide.
13        (10) Records and communications of a deceased
14    recipient may be disclosed to a coroner conducting a
15    preliminary investigation into the recipient's death under
16    Section 3-3013 of the Counties Code. However, records and
17    communications of the deceased recipient disclosed in an
18    investigation shall be limited solely to the deceased
19    recipient's records and communications relating to the
20    factual circumstances of the incident being investigated
21    in a mental health facility.
22        (11) Records and communications of a recipient shall be
23    disclosed in a proceeding where a petition or motion is
24    filed under the Juvenile Court Act of 1987 and the
25    recipient is named as a parent, guardian, or legal
26    custodian of a minor who is the subject of a petition for

 

 

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1    wardship as described in Section 2-3 of that Act or a minor
2    who is the subject of a petition for wardship as described
3    in Section 2-4 of that Act alleging the minor is abused,
4    neglected, or dependent or the recipient is named as a
5    parent of a child who is the subject of a petition,
6    supplemental petition, or motion to appoint a guardian with
7    the power to consent to adoption under Section 2-29 of the
8    Juvenile Court Act of 1987.
9        (12) Records and communications of a recipient may be
10    disclosed when disclosure is necessary to collect sums or
11    receive third party payment representing charges for
12    mental health or developmental disabilities services
13    provided by a therapist or agency to a recipient; however,
14    disclosure shall be limited to information needed to pursue
15    collection, and the information so disclosed may not be
16    used for any other purposes nor may it be redisclosed
17    except in connection with collection activities. Whenever
18    records are disclosed pursuant to this subdivision (12),
19    the recipient of the records shall be advised in writing
20    that any person who discloses mental health records and
21    communications in violation of this Act may be subject to
22    civil liability pursuant to Section 15 of this Act or to
23    criminal penalties pursuant to Section 16 of this Act or
24    both.
25    (b) Before a disclosure is made under subsection (a), any
26party to the proceeding or any other interested person may

 

 

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1request an in camera review of the record or communications to
2be disclosed. The court or agency conducting the proceeding may
3hold an in camera review on its own motion. When, contrary to
4the express wish of the recipient, the therapist asserts a
5privilege on behalf and in the interest of a recipient, the
6court may require that the therapist, in an in camera hearing,
7establish that disclosure is not in the best interest of the
8recipient. The court or agency may prevent disclosure or limit
9disclosure to the extent that other admissible evidence is
10sufficient to establish the facts in issue. The court or agency
11may enter such orders as may be necessary in order to protect
12the confidentiality, privacy, and safety of the recipient or of
13other persons. Any order to disclose or to not disclose shall
14be considered a final order for purposes of appeal and shall be
15subject to interlocutory appeal.
16    (c) A recipient's records and communications may be
17disclosed to a duly authorized committee, commission or
18subcommittee of the General Assembly which possesses subpoena
19and hearing powers, upon a written request approved by a
20majority vote of the committee, commission or subcommittee
21members. The committee, commission or subcommittee may request
22records only for the purposes of investigating or studying
23possible violations of recipient rights. The request shall
24state the purpose for which disclosure is sought.
25    The facility shall notify the recipient, or his guardian,
26and therapist in writing of any disclosure request under this

 

 

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1subsection within 5 business days after such request. Such
2notification shall also inform the recipient, or guardian, and
3therapist of their right to object to the disclosure within 10
4business days after receipt of the notification and shall
5include the name, address and telephone number of the
6committee, commission or subcommittee member or staff person
7with whom an objection shall be filed. If no objection has been
8filed within 15 business days after the request for disclosure,
9the facility shall disclose the records and communications to
10the committee, commission or subcommittee. If an objection has
11been filed within 15 business days after the request for
12disclosure, the facility shall disclose the records and
13communications only after the committee, commission or
14subcommittee has permitted the recipient, guardian or
15therapist to present his objection in person before it and has
16renewed its request for disclosure by a majority vote of its
17members.
18    Disclosure under this subsection shall not occur until all
19personally identifiable data of the recipient and provider are
20removed from the records and communications. Disclosure under
21this subsection shall not occur in any public proceeding.
22    (d) No party to any proceeding described under paragraphs
23(1), (2), (3), (4), (7), or (8) of subsection (a) of this
24Section, nor his or her attorney, shall serve a subpoena
25seeking to obtain access to records or communications under
26this Act unless the subpoena is accompanied by a written order

 

 

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1issued by a judge or by the written consent under Section 5 of
2this Act of the person whose records are being sought,
3authorizing the disclosure of the records or the issuance of
4the subpoena. No such written order shall be issued without
5written notice of the motion to the recipient and the treatment
6provider. Prior to issuance of the order, each party or other
7person entitled to notice shall be permitted an opportunity to
8be heard pursuant to subsection (b) of this Section. In the
9absence of the written consent under Section 5 of this Act of
10the person whose records are being sought, no No person shall
11comply with a subpoena for records or communications under this
12Act, unless the subpoena is accompanied by a written order
13authorizing the issuance of the subpoena or the disclosure of
14the records. Each subpoena duces tecum issued by a court or
15administrative agency or served on any person pursuant to this
16subsection (d) shall include the following language: "No person
17shall comply with a subpoena for mental health records or
18communications pursuant to Section 10 of the Mental Health and
19Developmental Disabilities Confidentiality Act, 740 ILCS
20110/10, unless the subpoena is accompanied by a written order
21that authorizes the issuance of the subpoena and the disclosure
22of records or communications or by the written consent under
23Section 5 of that Act of the person whose records are being
24sought."
25    (e) When a person has been transported by a peace officer
26to a mental health facility, then upon the request of a peace

 

 

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1officer, if the person is allowed to leave the mental health
2facility within 48 hours of arrival, excluding Saturdays,
3Sundays, and holidays, the facility director shall notify the
4local law enforcement authority prior to the release of the
5person. The local law enforcement authority may re-disclose the
6information as necessary to alert the appropriate enforcement
7or prosecuting authority.
8    (f) A recipient's records and communications shall be
9disclosed to the Inspector General of the Department of Human
10Services within 10 business days of a request by the Inspector
11General (i) in the course of an investigation authorized by the
12Department of Human Services Act and applicable rule or (ii)
13during the course of an assessment authorized by the Abuse of
14Adults with Disabilities Intervention Act and applicable rule.
15The request shall be in writing and signed by the Inspector
16General or his or her designee. The request shall state the
17purpose for which disclosure is sought. Any person who
18knowingly and willfully refuses to comply with such a request
19is guilty of a Class A misdemeanor. A recipient's records and
20communications shall also be disclosed pursuant to subsection
21(g-5) of Section 1-17 of the Department of Human Services Act
22in testimony at health care worker registry hearings or
23preliminary proceedings when such are relevant to the matter in
24issue, provided that any information so disclosed shall not be
25utilized for any other purpose nor be redisclosed except in
26connection with such action or preliminary proceedings.

 

 

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1(Source: P.A. 96-406, eff. 8-13-09; 96-1399, eff. 7-29-10;
296-1453, eff. 8-20-10; 97-566, eff. 1-1-12.)